C-310/91

3. The applicant in the proceedings before the national court claims, as the guardian of his handicapped daughter, who is of full age, 6. Up to the age of 25 years, which is the adult invalidity benefit under Belgian law, legal age limit for benefits, the Belgian State paid a family allowance plus a supplemen- tary allowance for a handicapped child in * Original language: German. favour of the applicant's daughter. The 1 — Council Regulation N o 1408/71 on the application of social claims submitted by the applicant for his security schemes to employed persons, to self-employed per- sons and to members of their families moving within the daughter for adult invalidity benefit were Community, in the version annexed to Council Regulation N o 2001/83 of 2 June 1983, OJ 1983 L 230, p. 6, last rejected on the grounds that his daughter amended by Regulations 1247, 1248 and 1429/92 of 30 April had never been an employed person subject 1992, OJ 1992 L 136, p. 1. 2 — The Law of 27 June 1969 was partially superseded and to social security regulations and was a Ger- amended by the Law of 27 February 1987 and supplemented man national. The appeal lodged against this by the Law of 20 July 1991 which entered into force on 1 August 1991. decision was unsuccessful. The national

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SCHMID v BELGIAN STATE

court to which the appeal was made has now unpaid leave who is an official of an referred the following questions to the international organisation with its own Court: staff regulations and its own social secu- rity scheme which grants exemption 'from all compulsory contributions to national social security bodies'?

If the first question is answered in the affir- mative:

1. H o w is the term 'civil servant' in Article 7. Reference is made to the Report for the 2(3) of Regulation N o 1408/71 to be Hearing for particulars of the facts, the legal interpreted, in particular does it cover a background and the submissions of the par- civil servant of a Member State on ties.

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O P I N I O N OF MR LENZ — CASE C-310/91

B — Opinion 11. Since the most recent amendment of the Belgian law concerning disability benefits of July 1992, 3 persons who fall within the scope of Regulation N o 1408/71 are listed expressly as being entitled to benefit. 4 That amendment to the law gives effect in a Mem- ber State's legislation to a legal consequence 8. The questions submitted for a preliminary which already applies by virtue of Commu- ruling are intended to enable the national nity law. court to decide whether Belgian adult dis- ability benefits granted on the basis of a per- sonal entitlement are to be granted to the applicant's daughter under Community leg- islation.

'Where, however, the benefits concerned are benefits for disabled persons granted under 10. The application of Community law would have to help the applicant's daughter over the hurdle of Belgian nationality in 3 — Moniteur belge of 1.8. 1991, p. 16971. order to allow her claim to be upheld. Of 4 — Cf. Article 4(1)(2), cited above. 5 — Case C-39/74 Costa v Belgium [1974] ECR 1251; Case relevance here might be the principle of C-187/73 Callemeyn v Belgium [1974] ECR 553 and Case equal treatment enshrined in Article 3(1) of C-7/75 Mr & Mrs F. v Belgium [1975] ECR 679 and cf. the Report for the Hearing in Case C-326/90 Commission v Bel- Regulation N o 1408/71 under which persons f'ium [1992] ECR I-5517, arguments of the Commission eading to a judgment against Belgium. w h o live in the territory of a Member State 6 — Cf. Regulation N o 1247/92 of 30 April 1992 amending and to whom this regulation applies have the Regulation (EEC) N o 1408/71 on application of social secu- rity schemes to employed persons, to self-employed persons same rights and obligations under the legisla- and to members of their families moving within the Com- tion of any Member State as the nationals of munity (OJ 1992 L 136, p. 1). 7 — Cf. Article 4(2)(a) and Annex II to Article 10(a) of Regu- that State. lation N o 1408/71.

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SCHMID v BELGIAN STATE

the legislation of a Member State to all assistance in accordance with Article 4(4) of nationals of that state who fulfil the pre- Regulation N o 1408/71 which is excluded scribed conditions, the term "member of the from the scope of the regulation. family" means at least the spouse of an employed or self-employed person and the children of such person who are either minors or dependent upon such person.'

14. Neither a determination that the disabil- ity allowances at issue might fall within the material scope of Regulation N o 1408/71 nor 17. Thus the personal scope of the relevant the express mention thereof in the amended provisions can have a bearing on their sub- regulation, relieve me of the duty to examine stantive scope. the personal scope of application of the regu- lation in respect of the allowances in ques- tion. 9 — Case C-39/74, cited above, paras 5 and 6; Case C-24/74 Caisse Régionale d'Assurance Maladie v Biason [1974] ECR 999, para. 9; Case C-183/73 Callemeyn, cited above, para. 6 and Case C-356/89 Newton v Chief Judication Officer [1991] ECR 3017. All these judgments concerned aid to disabled persons. Also compare Joined Cases 379/85 to 381/85 and 93/86 Caisse Régionale d'Assurance Maladie Rhône-Alpes v Oletti [1987] ECR 954, para. 9. This judgment concerned a supplementary allowance. 15. This is all the more necessary since the 10 — Emphasis added. disability benefits in question are hybrid 11 — Cf. Case C-39/74 Costa, cited above, footnote 5 and Cases C-249/83 Hoeckx v Openbaar Centrum voor Maatschap- social benefits which cannot be classified pelijk Welzijn Kalmthout [1985] ECR 973, para. 12, point- ing out that the risk covered must relate to a type of allow- clearly either as social security benefits in ance specified in Article 4(1) of the regulation: the judgment accordance with Article 4(1) nor as social concerned a benefit guaranteeing a minimum means of sub- sistence, like Case C-122/84 Scrivener v Centre Public d'aide Sociale Chastre [1985] ECR 1027, para. 19, and cf. Case C-9/78 Directeur Régionale de la Sécurité Sociale Nancy v Gillard [1978] ECR 1661, para. 5, on recognizing periods of captivity as a prisoner of war for the purposes of 8 — Cf. Article 3 of the amending Regulation N o 1247/92, cited calculating pensions; the characteristics and purpose of the above, footnote 6. benefits are used as criteria.

18. With respect to disability benefit, the 'Accordingly, national legislation giving a Court has held: legally protected right to a benefit for the handicapped falls, as regards the person cov- ered by Regulation N o 3, within the area of social security within the meaning of Article 51 of the Treaty and of the Community reg- ulations thereunder.' 14 'Whilst in some of its features, legislation concerning the grant of benefits to handi- capped persons is akin to social assistance, especially when need is the essential criterion 20. In effect, that means that the substantive in its implementation and there are no con- scope is dependent on the prior question as ditions as to periods of employment, of to the personal scope of the regulation. Soon membership or of contributions, yet it is after the entry into force of Regulation nevertheless close to social security to the N o 1408/71, the Court confirmed its case- extent that departing from the consideration law and clearly emphasized once again the of each case on its merits — a characteristic requirements determining the persons enti- feature of assistance — it confers upon ben- tled to benefit under the regulation. The eficiaries a legally defined position. In view Court held that: of the widely drawn definition of people entitled to benefit, such a legislation fulfils in fact a double function, 12 which is on the one hand to guarantee a minimum income to handicapped persons who are entirely out- side the social security system and, on the 'Thus, as regards an employed person or a other hand, to provide supplementary means person treated as such who is in a Member to persons entitled to social security benefits State entitled to an invalidity pension, legis- w h o are permanently incapacitated from lation that assures the handicapped person a work.' 13 right to "benefit" that is legally protected, falls, so far as these workers are concerned, within the field of social security, within the meaning of Article 51 of the Treaty and of the regulations made thereunder, even if such legislation might fall outside this field as far as other categories of beneficiaries are con- 19. Even at the time when Regulation No 3, cerned.' 15 the predecessor to Regulation N o 1408/71, was in force, the Court ruled:

25. The Court also held that:

'As regards the case of a handicapped child 22. Since the benefit claimant, the applicant's who from his minority fulfils the conditions daughter, has never been employed and required to benefit as a member of the never will be, she does not, by virtue of her employed person's family from the benefits own legal status, fall direcdy within the per- to the handicapped, the equality of treatment sonal scope of the regulation. She could, cannot terminate when he ceases to be a however, come under Regulation N o 1408/71 minor, if the child by reason of his handicap as a member of her father's family. is prevented from acquiring the status of employed person within the meaning of the regulation. If this were not the case, a worker anxious to ensure his child the last- ing enjoyment of the benefits necessitated by his condition as a handicapped person, 23. In two judgments in the 1970s 16 mem- would be induced not to remain in the Mem- bers of the families of migrant workers in a ber State where he has established himself comparable situation were granted disability and has found his employment, which would payments on the ground that Regulation run counter to the object sought to be N o 1408/71 was applicable. In Case C-7/75, obtained by the principle of free movement Mr & Mrs F., the parents of a minor had of workers within the Community bearing applied for a disability aid under Belgian law. in mind inter alia the right recognized under They were Italian nationals and the father this principle to employed persons and to could certainly be considered a migrant members of their family to remain within the worker within the meaning of the regulation. territory of a Member State in which the employed person was employed under the conditions determined by Regulation N o 1251/70 ... .' 18

27. In the light of this case-law the point o n which the assessment of this case hinges is whether the applicant comes within the 29. Nevertheless, there are several reasons scope of Regulation N o 1408/71. The point for doubting that the latter article — Article of departure in examining this issue is Article 2(3) of the regulation — can avail the appli- 2(1), according to which employed persons cant. The extent to which civil servants and and self-employed persons and members of persons treated as such come within the their family and survivors are specified as scope of the regulation is limited by refer- falling within the personal scope of the regu- ence to the regulation's substantive scope. lation and, possibly, Article 2(3) which states Only where the legislation of a Member that: State coming within the substantive scope of the regulation is or was applicable to civil servants or persons treated as such, can this group of persons fall within the personal 'This regulation shall apply to civil servants scope of Regulation N o 1408/71. In the same and to persons who, in accordance with the way as the Court, in determining the sub- legislation applicable, are treated as such, stantive scope of the regulation with respect where they are or have been subject to the to hybrid benefits in Member States' social legislation of a Member State to which this security systems, refers to the personal scope regulation applies.' of the regulation, the Community legislature does the reverse when defining the personal scope of the regulation for civil servants and persons treated as such.

benefits concerned come within the substan- 34. In my view the wording of Article 2(3) tive scope of the regulation turning on clearly precludes any personal entitlement on whether the regulation is applicable to the the part of members of the family of poten- claimants. tial beneficiaries. Ultimately it is up to the national court to define the legal nature of benefits payable under the legislation of a Member State and the persons entitled under that legislation. It is conceivable that disabil- ity benefits for adults might, depending on 31. Another reason for doubting that Article their aim and purpose and in the light of the 2(3) of Regulation N o 1408/71 can avail the Inzirillo and Mr & Mrs F. decisions, possibly applicant is that the members of the family be granted along much the same lines as dis- of civil servants and of people treated as such ability benefits paid in conjunction with are not designated as beneficiaries under the family allowances. regulation, at least not expressly.

32. This does not necessarily mean that ben- efits granted to a civil servant or a person treated as such which fall within the scope of 35. According to the information available the regulation, cannot, under any circum- to the Court on the benefits at issue in the stances, be in favour of the members of his case before the national court, it must be family. Let us consider, for example, family assumed that the benefits are granted only to allowances in accordance with Article designated beneficiaries with the result that 4(1)(h). A civil servant or a person treated as Article 2(3) of the regulation will not apply such can, at least in theory, also come within in favour of the applicant's daughter. the personal scope of the regulation under Article 2(3), simply because he is in receipt of family allowances.

It follows, in particular, that a child of such a worker of a Member State may not be 'a national of a Member State who in another refused the rights and privileges which Arti- Member State occupies a post governed by a cle 48 of the Treaty and Regulation special statute under international law, (...), N o 1612/68 afford him. must be regarded as a worker within the meaning of Article 48(1) and (2) of the Treaty and is therefore entided, as are the members of his family, to the rights and privileges prescribed in those provisions and in Regulation N o 1612/68 of the Council'. 24 38. As regards the possibility afforded by Article 48(4) of the Treaty to exclude persons from the scope of the other paragraphs of this article, the Court requires a strict appraisal of the situation on the basis of the aim pursued by those provisions. 22 41. In those terms the applicant can easily be classed as an employed person. Nevertheless, it is questionable whether he should also be considered an employed person for the pur- poses of Article 2(1) of Regulation N o 1408/71. In my view, the argument 39. Without it being necessary to examine against the concept of an employed person the details of the case in question, it is under Article 48 of the Treaty and Regu- already clear from the judgment, lation N o 1612/68 being identical with that in Regulation N o 1408/71 is that the latter

21 — Joined Cases C-389/87 and C-390/87 Echternach and Moritz v Minister for Education and Science [1989] ECR 723, paras 11 and 12. 23 — Cf. Echtemacb and Moritz, cited above, footnote 21, 22 — Cf. Case C-148/79 Commission v Belgium [1980] ECR para. 14. 3881, para. 11. 24 — Echternach and Moritz, cited above, footnote 21, para. 15.

43. Although that is, in principle, a broad definition, it is clearly restricted to the per- sons subject to the relevant social security schemes. That restriction is confirmed in the regulation discussed above on the personal scope of the regulation for civil servants and persons treated as such, which is limited by 46. A further consideration makes it doubt- substantive criteria. ful whether the applicant's daughter can suc- cessfully rely on Regulation N o 1408/71 at all to claim the disability benefits at issue. In Kermaschek 27 the Court devised a system 44. The fact, also, that a distinction is made for classifying claims for benefit under Regu- between employed persons and self- lation N o 1408/71 which can be summarized employed persons on the one hand and civil as stating that people belonging to the cate- servants and persons treated as such on the gory of workers can make claims on the other, requires, in my view, that the concept basis of personal entitlement, whilst mem- of an employed person be defined with the bers of the families of beneficiaries under objectives and substantive scope of the regu- Regulation N o 1408/71 can only claim lation in mind. derived rights acquired through their status as a member of a family of a worker. 28

45. As a result I consider it doubtful that the 26 — International Convention on Cooperation for the Safety of applicant can be classed as an employed Air Navigation 'Eurocontrol', amended in 1981, law of 16 November 1984, Moniteur belge of 30 April 1985, p. 6014 and Bundesgesetzblatt (BGBl.) 1984, Part II 69, 71. 27 — Case C-40/76 Kermaschek v Bundesanstalt für Arbeit [1976] ECR 1669. 25 — Emphasis added. 28 — Cf. Kermaschek, cited above, footnote 27, para. 7.

48. If, however, those principles were to be applied to the case under examination, the 52. For this reason the Court is perfectly applicant's daughter could not rely on Regu- entitled to comment on provisions under lation N o 1408/71, since, in accordance with Community law which have a close substan- the answers of the Belgian Government and tive connection with the provisions expressly the concurring observations of the parties in mentioned, particularly when the related the case, the aid for disabled adults is granted provisions would inevitably have had to be only on the basis of personal entitlement. examined if the questions submitted for a preliminary ruling had been worded in more abstract terms, for the Court is not bound to the exact wording of the order for reference. In practice it interprets it so as to enable it to 49. The Court's most recent judgment 33 assess comprehensively the issues of Com- suggests that it wishes to apply the distinc- munity law involved. tion between personal and derived rights established in Kermaschek to disability aid as well. If the Court were to continue to pursue this approach, the applicant could not suc- cessfully rely on Regulation N o 1408/71 on behalf of his daughter. 53. One Community provision •which comes to mind in this respect is Regulation N o 1612/68. 34 As ascertained above, the applicant can be classed as an employed per- son under this regulation which was adopted 50. This interim conclusion does not, how- in order to implement freedom of move- ever, mean that the applicant cannot success- ment. The applicant or his daughter can, if fully rely on Community law. necessary, rely on Article 7(2) of the regu- lation under which an employed person within the meaning of the regulation enjoys 29 — Case C-157/84 Frascogna v Caisse des Depots et Consigna- the same social and tax advantages as tions [1985] ECR 1739, para. 15. national workers. Article 10 of the regulation 30 — Case C-94/84 ONEM v Deák [1985] ECR 1873, para. 11. 31 — Case C-147/87 Zaoui v CRAMIF [1987] ECR 5511, provides that the persons who have the right para. 11. 32 — C-4/76 Kermaschek, unemployment benefit, C-157/84 Frascogna, old age allowances, C-94/84 Deak, unemploy- ment benefit and C-147/87 Zaoui, supplementary invalidity allowances for nationals of a non-member country. 34 — Council Regulation N o 1612/68 of 15 October 1968 on the 33 — Case C-243/91 Belgium v Taghavi [1992] ECR I-4401, freedom of movement of workers within the Community, paras 7 and 8. OJ, English Special Edition 1968 (II), p. 475.

to install themselves with the worker include 'Furthermore the obligation to ensure that a dependent relatives. This means that that handicapped adult child receives treatment group of persons is expressly included in the equal to that accorded to the nationals of the category of those coming under the regu- State in which he resides is laid down in lation. other provisions of Community law relating to freedom of movement for workers. Article 10(1)(a) of Regulation N o 1612/68 of the Council of 19 October 1968 (...) provides that the right to install oneself in a Member State with a worker who is employed there 54. Even if the worker is no longer actively although a national of another Member State employed, he and his family members within applies not only to those descendants of such the meaning of Article 10 of Regulation a worker who are under the age of 21 years N o 1612/68 still enjoy the right to remain in but also to those who are "dependants". the State of employment under Article 1 of Article 7(2) of the same regulation provides Regulation N o 1251/70. 35 Article 7 of Regu- that a worker who is a national of a Member lation N o 1251/70 specifies, moreover, that: State shall, in the territory of another Mem- ber State, enjoy "the same social and tax advantages as national workers". In the light of the equality of treatment which Regu- lation N o 1612/68 seeks to bring about and taking account of the provisions of that 'The right to equality of treatment estab- regulation as a whole, the matters covered by lished by Council Regulation (EEC) Article 7(2) must be defined in such a way as N o 1612/68 shall apply also to persons com- to include every social and tax advantage, ing under the provisions of this regulation.' whether or not linked to a contract of employment, such as an allowance for hand- icapped adults which is awarded by a Mem- ber State to its own nationals under legisla- tion which gives a legally protected right thereto.' 38 55. In the light of the above, the obvious course open to the applicant is to rely on Article 7 of Regulation N o 1612/68 or on Regulation N o 1251/70 either in his own name or on behalf of his daughter. Whilst the Court did not state whether Regulation N o 1612/68 applied in Mr & Mrs F., 36 it 56. The applicant could hence claim the ben- specified in Inzirillo, 37 after stating its pos- efits applied for under Community law if ition with respect to Regulation N o 1408/71, they represented social advantages for him that: and if his daughter could rely on the princi- ple of equal treatment. It is questionable whether those conditions apply, since dis- 35 — Regulation N o 1251/70 of the Commission of 29 June ability allowances are granted on the basis of 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State, OJ, English Special Edition 1970 (II), p. 402. 36 — Case C-7/75, cited above, footnote 16. 37 — Case C-63/76, cited above, footnote 16. 38 — Case C-63/76, cited above, footnote 16, paras 18 to 21.

60. The actual circumstances in the case before the national court are, however, dif- ferent. The applicant still supports his daughter. That situation will essentially 'it follows from that regulation as a whole remain the same, since the daughter is not in and from the objective pursued that the a position to pursue gainful employment. In advantages which that regulation extends to the case before the national court the finan- workers who are nationals of other Member cial dependence of a child upon its parents, States are all those which, whether or not which is normally limited in time, is pro- linked to a contract of employment, are gen- longed as a result of the daughter's disability. erally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their resi- dence on the national territory and whose extension to workers who are nationals of other Member States therefore seems likely 61. As the Court held in Lebon, 42 this mat- to facilitate the mobility of such workers ter turns solely on the actual support pro- within the Community.' 39 vided by the worker; there is no requirement for the worker to be obliged to support the child. As a result public benefits in favour of the daughter will always constitute a social advantage for her father who is supporting her. 43 58. Admittedly the disability allowances applied for would be granted not to the applicant but to his daughter. The members of the family of a migrant worker and also the adult children of the worker who are 62. The situation is not altered by the fact dependent on him are, however, expressly that the daughter spends part of her time in a identified as coming under the regulation. 40

67. In my opinion a beneficiary must, under these circumstances, also be able to rely on the principle of equal treatment in his own right. 48 If all the requirements which justify 64. First of all, the idea that only the worker a claim must be met by the member of a may directly invoke the prohibition on dis- worker's family, this person must also enjoy crimination, is borne out by the judgment in equal treatment if the object of the principle Lebon 44 which seems to suggest that mem- of equal treatment is not to be defeated. bers of the family are only indirect beneficia- ries, a view which might also be regarded as confirmed by Taghavi. 45 In Taghavi, how- ever, the claimant was a national of a non- member country and the circumstances were, on these grounds alone, not comparable. 68. That interpretation is, moreover, sup- ported by the wording of Article 7 of Regu- lation N o 1251/70, which makes no distinc- tion between workers and other persons covered by the regulation, but simply refers 65. The judgment in Lebon, too, provides no to persons coming under the provisions of indication of what the consequences would the regulations. be if the question whether certain public benefits granted to members of a worker's 46 — Case C-63/76, cited above, footnote 16, para. 18. 47 — Case C-3/90, cited above, footnote 43, para. 26. 48 — Cf. the Opinion of Advocate General Jacobs in Case 44 — Case C-316/85, cited above, footnote 41. C-111/91 Commission v Luxembourg [1993] ECR I-817, at 45 — Case C-243/91, cited above, footnote 33, para. 11. p. I-818, point 33.

(2) She can, however, as the daughter of a migrant worker, rely on Article 7(2) of Regulation N o 1612/68 in her own right in order to obtain benefit as long as she is still being supported by the migrant worker and these allowances thus constitute a social advantage for him.

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